On Tuesday 26 March 2019, the European Parliament voted in favour of the Directive of the European Parliament and of the Council on Copyright in the Digital Single Market (the Copyright Directive) with 348 votes in favour, 274 against.
The Copyright Directive includes the controversial provisions, Article 11 and Article 13, referred to as the “link tax” and “upload filter”, respectively, by opponents. There have been some important revisions made to the Copyright Directive since its rejection on 5 July 2018 by the European Parliament (the previous version of the text was discussed in an earlier article here), however the substance of these articles has not changed.
Article 11 requires information society service providers (such as Google) to pay licensing fees to publications such as newspapers whose work gets aggregated in services (such as Google News). This requirement will only apply to the online use of press publications by commercial services such as news aggregators, and the uses of press publications by individual users are explicitly excluded. Further, the text now explicitly excludes “individual words and very short extracts” of press publications (often referred to as “snippets” in the public debate) from the scope of the Copyright Directive. This means such snippets can be used without any authorisation and for free. It has been left to the courts to decide what constitutes a “very short extract”, provided that when making such assessment, the impact on the effectiveness of the new right will be taken into account.
Article 13 requires online content sharing service providers (such as YouTube) to conclude licensing agreements with right-holders (such as music or film producers) for the use of music, videos or other copyright protected content. If licences are not concluded, these platforms will have to make best efforts to ensure that content not authorised by the right holders is not available on their website. This “best efforts” obligation does not prescribe any specific means or technology to recognise illegal content (the text no longer refers to “effective content recognition technologies”, as discussed here in our previous article) nor does it impose any upload filters. The obligation to conclude licensing agreements does not apply to internet users, who will be automatically covered by licences concluded between right-holders and online platforms permitting such users to share and use online any content, such as songs and music videos, covered by these licences. Further, the text now makes it clear that users are allowed to upload memes and other content generated by users for purposes of quotation, criticism, review, caricature, parody and pastiches and online content sharing service providers do not need to conclude licensing agreements with right-holders in respect of such content, nor should they remove such content from their website.
The text adopted on Tuesday by the European Parliament will now need to be formally endorsed by the Council of the European Union in the coming weeks (currently scheduled for 8 or 15 April 2019). Assuming it passes that stage, the Copyright Directive will be signed by European Council and Parliament before being published on the Official Journal of the EU. The law will enter into force 20 days after that. However, Member States will have a further two years to transpose the new rules into their national legislation, which may mean that the UK is no longer in the EU at that point. However, UK business providing their services in the EU will still have to comply.
By Alexandra Harmer